Bannon Should Hit Trump with Defamation Suit of His Own, and He Might Even Win

President Donald Trump‘s attorney threatened Steve Bannon with a defamation and breach of contract lawsuit, after statements the former adviser made were revealed in a new book. While Trump was not pleased with what Bannon had to say about him and his family, his response may have left him open to a defamation case from Bannon.

“When he was fired, he not only lost his job, he lost his mind,” Trump said in a statement about Bannon. The president also said, “he spent his time at the White House leaking false information to the media to make himself seem far more important than he was.”

Those are some pretty loaded remarks that could very well be grounds for a libel lawsuit. Generally speaking, a libel case requires proof that someone published a false, damaging statement, and in cases of public figures like Bannon, it must be made with “actual malice,” meaning knowledge that the statement is false or reckless disregard for whether or not it’s true.

Let’s start with that second statement about Bannon providing false information to the media. Trump is basically calling Bannon a liar. Trump knows full well that being called a liar can prompt someone to sue for defamation, because he’s already facing a case like that. Summer Zervos sued Trump for defamation after he called her sexual assault allegations against him a politically-motivated fabrication.

Here, Trump is accusing Bannon of intentionally lying to the media to boost his own profile. Now, if this is true, Trump is in the clear. Trump has long railed against supposed false information coming out of the White House and ending up in newspapers, but so far, he has yet to provide evidence that anyone in particular has done this, or that any specific statement made to the media has been false.

Not only that, he’s saying that he lied while serving as a White House staff member, which calls his job performance into question, which in some states is considered defamation per se, meaning you don’t even have to show harm because the statement is deemed defamatory on its face.

The tough element to prove here would be actual malice. If Trump truly believes that Bannon was giving the media false information, that could be a defense because that would mean he wasn’t accusing Bannon with reckless disregard for whether his claim was true or not. If Trump didn’t have any reason to believe that Bannon was doing this, and just hurled a blind accusation, that would be another story.

Looking at that first statement, that Bannon “lost his mind,” Trump would likely say that this was merely hyperbole and shouldn’t be taken literally. Of course, that wouldn’t necessarily stop Bannon from claiming defamation anyway. When the president of the United States says that you’re not of sound mind, that can significantly damage a person’s reputation, and if Bannon wanted to bring a defamation lawsuit against Trump, he would likely include this among his claims.

So far, neither Bannon or Trump have filed lawsuits against each other, but if Trump moves forward with a lawsuit as promised, don’t be surprised if Bannon strikes back.